| Memorandum |
January 5, 2006 |
| SUBJECT: |
Presidential Authority to Conduct
Warrantless Electronic
Surveillance to Gather Foreign Intelligence Information |
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| FROM: |
Elizabeth
B. Bazan and Jennifer K. Elsea
Legislative Attorneys American Law Division |
Recent
media revelations that the President authorized the National Security
Agency (NSA) to collect signals intelligence1
from communications involving U.S. persons within the United States,
without obtaining a warrant or court order,2 raise numerous questions
1 "Signals intelligence"
is defined in the DEPARTMENT OF DEFENSE DICTIONARY OF MILITARY AND
ASSOCIATED TERMS, Joint Publication 1-02 (April 12, 2001), as follows:
Id. at 390 (cross-references omitted). "Communications intelligence" is defined as "Technical information and intelligence derived from foreign communications by other than the intended recipients. Also called COMINT." Id. at 84. "Electronic intelligence" is defined as "Technical and geolocation intelligence derived from foreign non-communications electromagnetic radiations emanating from other than nuclear detonations or radioactive sources. Also called ELINT. . . ." Id. at 140 (cross-references omitted). "Foreign instrumentation signals intelligence" is defined as:
Id. at 167 (cross-references omitted).
1. A category of
intelligence comprising either individually or in combination all
communications intelligence, electronic intelligence, and foreign
instrumentation signals intelligence, however transmitted. 2.
Intelligence derived from communications, electronic, and foreign
instrumentation signals. Also called SIGINT. . . .
Id. at 390 (cross-references omitted). "Communications intelligence" is defined as "Technical information and intelligence derived from foreign communications by other than the intended recipients. Also called COMINT." Id. at 84. "Electronic intelligence" is defined as "Technical and geolocation intelligence derived from foreign non-communications electromagnetic radiations emanating from other than nuclear detonations or radioactive sources. Also called ELINT. . . ." Id. at 140 (cross-references omitted). "Foreign instrumentation signals intelligence" is defined as:
Technical
information and intelligence derived from the intercept of foreign
electromagnetic emissions associated with the testing and operational
deployment of non- US aerospace, surface, and subsurface systems.
Foreign instrumentation signals intelligence is a subcategory of
signals intelligence. Foreign instrumentation signals include but are
not limited to telemetry, beaconry, electronic interrogators, and video
data links. Also called FISINT. . . .
Id. at 167 (cross-references omitted).
(return)
2 James Risen and Eric Lichtblau, Bush Lets
U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16,
2005,
at 1, 22
(citing anonymous government officials to report that the executive
order, which allows some warrantless eavesdropping on persons inside
the United States, "is based on classified
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regarding the
President's authority to order warrantless electronic surveillance.
Little information is currently known about the full extent of the NSA
domestic surveillance, which was revealed by the New York Times in
December, 2005, but allegedly began after the President issued a secret
order in 2002. Attorney General Alberto
Gonzales laid out some of its
parameters, telling reporters that it involves "intercepts of contents
of communications where one . . . party to the communication is outside
the United States" and the government has "a reasonable basis to
conclude that one party to the communication is a member of al Qaeda,
affiliated with al Qaeda, or a member of an organization affiliated
with al Qaeda, or working in support of al Qaeda."3
The aim of the
program, according to Principal Deputy 3 Director for National
Intelligence General Michael Hayden, is not "to collect reams of
intelligence, but to detect and warn and prevent [terrorist] attacks."4
The President has stated that he believes his order to be fully supported by the Constitution and the laws of the United States,5 and the Attorney General clarified that the Administration bases its authority both on inherent presidential powers and the joint resolution authorizing the use of "all necessary and appropriate force" to engage militarily those responsible for the terrorist attacks of September 11, 2001 ("AUMF").6 Although the
The President has stated that he believes his order to be fully supported by the Constitution and the laws of the United States,5 and the Attorney General clarified that the Administration bases its authority both on inherent presidential powers and the joint resolution authorizing the use of "all necessary and appropriate force" to engage militarily those responsible for the terrorist attacks of September 11, 2001 ("AUMF").6 Although the
2 (...continued)
legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups").
3 See Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005) (hereinafter Gonzales Press Conference) , available at [http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html]. The Attorney General emphasized that his discussion addressed the legal underpinnings only for those operational aspects that have already been disclosed by the President, explaining that "the program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country." Id.
4 Id. (describing the program as more "aggressive" than traditional electronic surveillance under FISA, but also as "less intrusive").
5 President Bush's Radio Address of December 17, 2005, excerpted in `A Vital Tool,' USA TODAY, 5 December 19, 2005, at A12.
6 Authorization for Use of Military Force ("the AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001). Attorney General Gonzales explained
legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups").
(return)
3 See Press Release, White House, Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005) (hereinafter Gonzales Press Conference) , available at [http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html]. The Attorney General emphasized that his discussion addressed the legal underpinnings only for those operational aspects that have already been disclosed by the President, explaining that "the program remains highly classified; there are many operational aspects of the program that have still not been disclosed and we want to protect that because those aspects of the program are very, very important to protect the national security of this country." Id.
(return)
4 Id. (describing the program as more "aggressive" than traditional electronic surveillance under FISA, but also as "less intrusive").
(return)
5 President Bush's Radio Address of December 17, 2005, excerpted in `A Vital Tool,' USA TODAY, 5 December 19, 2005, at A12.
(return)
6 Authorization for Use of Military Force ("the AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001). Attorney General Gonzales explained
Justice O'Connor
. . . said, it was clear and
unmistakable that the Congress had authorized the detention of an
American citizen captured on the battlefield as an enemy combatant for
the remainder -- the duration of the hostilities. So even though the
authorization to use force did not mention the word, `detention,' she
felt that detention of enemy soldiers captured on the battlefield was a
fundamental incident of waging war, and therefore, had been authorized
by Congress when they used the words, `authorize the President to use
all necessary and appropriate force.' For the same reason, we believe
signals intelligence is even more a fundamental incident of war, and we
believe has been authorized by the Congress. And even though signals
intelligence is not mentioned in the authorization to use force, we
believe that the Court would apply the same reasoning to recognize the
authorization by Congress to engage in
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resolution does not expressly specify what
it authorizes as "necessary and appropriate force," the Administration
discerns the intent of Congress to provide the statutory authority
necessary take virtually any action reasonably calculated to prevent a
terrorist attack, including by overriding at least
some statutory prohibitions that contain exceptions for conduct that is
"otherwise authorized by statute." Specifically, the Administration asserts that a part of
the Foreign Intelligence Surveillance Act (FISA)7 that punishes those who
conduct "electronic surveillance under color of law except as authorized by
statute"8
does not bar the NSA surveillance at issue because the AUMF
is just such a statute.9 On December 22,
2005, the Department of Justice Office of Legislative Affairs released
a letter to certain members of the House and Senate intelligence
committees setting forth in somewhat greater detail the
Administration's position with regard to the legal authority supporting
the NSA activities described by the President.10
The Administration's views have been the subject of debate. Critics challenge the notion that federal statutes regarding government eavesdropping may be bypassed by executive order, or that such laws were implicitly superceded by Congress's authorization to use military force. Others, however, have expressed the view that established wiretap procedures are too cumbersome and slow to be effective in the war against terrorism, and that the threat of terrorism justifies extraordinary measures the President deems appropriate, and some agree that Congress authorized the measures when it authorized the use of military force.
This memorandum lays out a general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity. It then outlines the legal framework regulating electronic surveillance by the government, explores ambiguities in those statutes that could provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the arguments that the President possesses inherent authority to order the operations or that Congress has provided such authority.
Constitutional Separation of Powers
Foreign intelligence collection is not among Congress's powers enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the states or to deny the authority to the federal government altogether. It is more likely that the power to collect intelligence resides somewhere within
The Administration's views have been the subject of debate. Critics challenge the notion that federal statutes regarding government eavesdropping may be bypassed by executive order, or that such laws were implicitly superceded by Congress's authorization to use military force. Others, however, have expressed the view that established wiretap procedures are too cumbersome and slow to be effective in the war against terrorism, and that the threat of terrorism justifies extraordinary measures the President deems appropriate, and some agree that Congress authorized the measures when it authorized the use of military force.
This memorandum lays out a general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity. It then outlines the legal framework regulating electronic surveillance by the government, explores ambiguities in those statutes that could provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the arguments that the President possesses inherent authority to order the operations or that Congress has provided such authority.
Constitutional Separation of Powers
Foreign intelligence collection is not among Congress's powers enumerated in Article I of the Constitution, nor is it expressly mentioned in Article II as a responsibility of the President. Yet it is difficult to imagine that the Framers intended to reserve foreign intelligence collection to the states or to deny the authority to the federal government altogether. It is more likely that the power to collect intelligence resides somewhere within
6 (...continued)
7 Gonzales Press Conference, supra note 3. Pub. L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
8 50 U.S.C. § 1809 (emphasis added).
9 See Gonzales Press Conference, supra note 3.
10 Letter from Assistant Attorney General William E. Moschella to Chairman Roberts and Vice Chairman Rockefeller of the Senate Select Committee on Intelligence and Chairman Hoekstra and Ranking Minority Member Harman of the House Permanent Select Committee on Intelligence (Dec. 22, 2005) (hereinafter "OLA Letter").
this
kind of electronic surveillance.
(return)
7 Gonzales Press Conference, supra note 3. Pub. L. 95-511, Title I, 92 Stat. 1796 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
(return)
8 50 U.S.C. § 1809 (emphasis added).
(return)
9 See Gonzales Press Conference, supra note 3.
(return)
10 Letter from Assistant Attorney General William E. Moschella to Chairman Roberts and Vice Chairman Rockefeller of the Senate Select Committee on Intelligence and Chairman Hoekstra and Ranking Minority Member Harman of the House Permanent Select Committee on Intelligence (Dec. 22, 2005) (hereinafter "OLA Letter").
(return)
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the domain of
foreign affairs and war powers, both of which areas are
inhabited to some degree by the President together with the Congress. 11
The Steel Seizure Case 12 is frequently cited as providing a framework for the courts to decide the extent of the President's authority, particularly in matters involving national security. In that Korean War-era case, the Supreme Court declared unconstitutional a presidential order seizing control of steel mills that had ceased production due to a labor dispute, an action justified by President Truman on the basis of wartime exigencies and his role as Commander-in-Chief,13 despite the fact that Congress had considered but rejected earlier legislation that would have authorized the measure,14 and that other statutory means were available to address the steel shortage.15 The Court remarked that
The Steel Seizure Case 12 is frequently cited as providing a framework for the courts to decide the extent of the President's authority, particularly in matters involving national security. In that Korean War-era case, the Supreme Court declared unconstitutional a presidential order seizing control of steel mills that had ceased production due to a labor dispute, an action justified by President Truman on the basis of wartime exigencies and his role as Commander-in-Chief,13 despite the fact that Congress had considered but rejected earlier legislation that would have authorized the measure,14 and that other statutory means were available to address the steel shortage.15 The Court remarked that
It is clear that
if the President had authority to issue the order he
did, it must be found in some provision of the Constitution. And it is
not claimed that express constitutional language grants this power to
the President. The contention is that presidential power should be
implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say
that `The executive Power shall be vested in a President . . .'; that
`he shall take Care that the Laws be faithfully executed'; and that he
`shall be Commander in Chief of the Army and Navy of the United States.'
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though
11
The Constitution specifically gives to Congress
the power to
"provide for the common Defence," U.S. CONST. Art. I, § 8, cl. 1; to
"declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water," Id. § 8, cl.
11; "To raise and
support Armies," and "To provide and maintain a Navy," Id. § 8, cls.
12-13; "To make Rules for the Government and Regulation of the land and
naval Forces," Id. § 8, cl. 14, "To declare War," Id. § 8, cl.
1; and
to "make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof," Id. § 8, cl.
18. The President is
responsible for "tak[ing] Care that the Laws [are] faithfully
executed," Art. II, § 3, and serves as the Commander-in-Chief of the
Army and Navy, Id. § 2, cl. 1.
12 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
13 Id. at 582 (explaining the government's position that the order to seize the steel mills "was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States.").
14 Id. at 586 (noting that "[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency").
15 Id. at 585. The Court took notice of two statutes that would have allowed for the seizure of personal and real property under certain circumstances, but noted that they had not been relied upon and the relevant conditions had not been met. In particular, the Court dismissed the government's reference to the seizure provisions of § 201 (b) of the Defense Production Act, which the government had apparently not invoked because it was "`much too cumbersome, involved, and time-consuming for the crisis which was at hand.'" Id. at 586.
(return)
12 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
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13 Id. at 582 (explaining the government's position that the order to seize the steel mills "was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States.").
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14 Id. at 586 (noting that "[w]hen the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency").
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15 Id. at 585. The Court took notice of two statutes that would have allowed for the seizure of personal and real property under certain circumstances, but noted that they had not been relied upon and the relevant conditions had not been met. In particular, the Court dismissed the government's reference to the seizure provisions of § 201 (b) of the Defense Production Act, which the government had apparently not invoked because it was "`much too cumbersome, involved, and time-consuming for the crisis which was at hand.'" Id. at 586.
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`theater of war'
be an expanding concept, we cannot with faithfulness
to our constitutional system hold that the Commander in Chief of the
Armed Forces has the ultimate power as such to take possession of
private property in order to keep labor disputes from stopping
production. This is a job for the Nation's lawmakers, not for its
military authorities.16
The Court also rejected the argument that past similar assertions of authority by presidents bolstered the executive claims of constitutional power:
It is said that
other Presidents without congressional authority have
taken possession of private business enterprises in order to settle
labor disputes. But even if this be true, Congress has not thereby lost
its exclusive constitutional authority to make laws necessary and
proper to carry out the powers vested by the Constitution `in the
Government of the United States, or any Department or Officer thereof.'
17
The Steel Seizure Case is not remembered as much for the majority opinion as it is for the concurring opinion of Justice Robert Jackson, who took a more nuanced view and laid out what is commonly regarded as the seminal explication of separation-of-powers matters between Congress and the President. Justice Jackson set forth the following oft-cited formula:
1. When the
President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own right plus all that Congress
can delegate. . . . A seizure executed by the President pursuant to an
Act of Congress would be supported by the strongest of presumptions and
the widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.18
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.18
To ascertain where in this framework the President's claimed authority might fall appears to require a determination of the Congress's will and an assessment of how the Constitution allocates the asserted power between the President and Congress, if at all. If the
16 Id. at 587
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17 Id. at 589.
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18 Id. at 637-38 (Jackson, J., concurring) (footnotes and citations omitted).
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Constitution
forbids the conduct, then the court has a duty to find the
conduct invalid, even if the President and Congress have acted in
concert. In the absence of a constitutional bar, Congress's support
matters, except in the rare case where the President alone is entrusted
with the specific power in question. In other words, under this view,
the President may sometimes have the effective power to take unilateral
action in the absence of any action on the part of Congress to indicate
its will, but this should not be taken to mean that the President
possesses the inherent authority to exercise full authority in a
particular field without Congress's ability to encroach.
William Rehnquist, at the time an Associate Justice of the Supreme Court, took the opportunity in Dames & Moore v. Regan 19 to refine Justice Jackson's formula with respect to the cases falling within the second classification, the "zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."20
In Dames & Moore, petitioners had challenged President Carter's executive order establishing regulations to further compliance with the terms of an executive agreement he had entered into for the purpose of ending the hostage crisis with Iran. The orders, among other things, directed that legal recourse for breaches of contract with Iran and other causes of action must be pursued before a special tribunal established by the Algiers Accords.
President Carter relied largely on the International Economic Emergency Powers Act (IEEPA),23 which provided explicit support for most of the measures taken, but could not be read to authorize actions affecting the suspension of claims in U.S. courts. The Carter Administration also cited the broad language of the Hostage Act, which states that "the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release" of the hostages.24 Justice Rehnquist wrote for the majority
William Rehnquist, at the time an Associate Justice of the Supreme Court, took the opportunity in Dames & Moore v. Regan 19 to refine Justice Jackson's formula with respect to the cases falling within the second classification, the "zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain."20
In such a case
the analysis becomes more complicated, and the validity
of the President's action, at least so far as separation-of-powers
principles are concerned, hinges on a consideration of all the
circumstances which might shed light on the views of the Legislative
Branch toward such action, including "congressional inertia,
indifference or quiescence."21
[I]t is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.22
[I]t is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.22
In Dames & Moore, petitioners had challenged President Carter's executive order establishing regulations to further compliance with the terms of an executive agreement he had entered into for the purpose of ending the hostage crisis with Iran. The orders, among other things, directed that legal recourse for breaches of contract with Iran and other causes of action must be pursued before a special tribunal established by the Algiers Accords.
President Carter relied largely on the International Economic Emergency Powers Act (IEEPA),23 which provided explicit support for most of the measures taken, but could not be read to authorize actions affecting the suspension of claims in U.S. courts. The Carter Administration also cited the broad language of the Hostage Act, which states that "the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release" of the hostages.24 Justice Rehnquist wrote for the majority
Although we have
declined to conclude that the IEEPA or the Hostage Act directly
authorizes the President's suspension of claims for the reasons noted,
we cannot ignore
19 453
U.S. 668 (1981) (citing Youngstown
at 637).
20 Id. at 668-69.
21 Id.
22 Id. at 669.
23 Pub. L. 95-223, 91 Stat. 1626, codified as amended at 50 U.S.C. §§ 1701 et.seq.
24 Id at 676 (citing the Hostage Act, 22 U. S. C. § 1732).
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20 Id. at 668-69.
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21 Id.
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22 Id. at 669.
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23 Pub. L. 95-223, 91 Stat. 1626, codified as amended at 50 U.S.C. §§ 1701 et.seq.
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24 Id at 676 (citing the Hostage Act, 22 U. S. C. § 1732).
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the general tenor
of Congress' legislation in this area in
trying to
determine whether the President is acting alone or at least with the
acceptance of Congress. As we have noted, Congress cannot anticipate
and legislate with regard to every possible action the President may
find it necessary to take or every possible situation in which he might
act. Such failure of Congress specifically to delegate authority does
not, "especially . . . in the areas of foreign policy and national
security," imply "congressional disapproval" of action taken by the
Executive. On the contrary, the enactment of legislation closely
related to the question of the President's authority in a particular
case which evinces legislative intent to accord the President broad
discretion may be considered to "invite" "measures on independent
presidential responsibility." At least this is so where there is no
contrary indication of legislative intent and when, as here, there is a
history of congressional acquiescence in conduct of the sort engaged in
by the President.25
The Court remarked that Congress's implicit approval of the longstanding presidential practice of settling international claims by executive agreement was critical to its holding that the challenged actions were not in conflict with acts of Congress.26 The Court cited Justice Frankfurter's concurrence in Youngstown stating that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on `Executive Power' vested in the President by § 1 of Art. II." 27
Finally, the Court stressed that its holding was narrow:
We do not decide
that the President possesses plenary power to settle
claims, even as against foreign governmental entities. . . . But where,
as here, the settlement of claims has been determined to be a necessary
incident to the resolution of a major foreign policy dispute between
our country and another, and where, as here, we can conclude that
Congress acquiesced in the President's action, we are not prepared to
say that the President lacks the power to settle such claims.28
A review of the history of intelligence collection and its regulation by Congress suggests that the two political branches have never quite achieved a meeting of the minds regarding their respective powers. Presidents have long contended that the ability to conduct surveillance for intelligence purposes is a purely executive function, and have tended to make broad assertions of authority while resisting efforts on the part of Congress or the courts to impose restrictions. Congress has asserted itself with respect to domestic surveillance, but has largely left matters involving overseas surveillance to executive self-regulation, subject to congressional oversight and willingness to provide funds.29
Background: Government Surveillance
Investigations for the purpose of gathering foreign intelligence give rise to a tension between the Government's legitimate national security interests and the protection of privacy interests and First Amendment rights.